A-Rod's appeal of ban forces MLB to prove its case

Aug. 5, 2013
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Alex Rodriguez was suspended through the end of the 2014 season but was in the Yankees‚?? lineup for Monday‚??s game against the White Sox. He will be able to keep playing while he appeals the penalty. ] / Rob Grabowski, USA TODAY Sports

by Jorge L. Ortiz, USA TODAY

by Jorge L. Ortiz, USA TODAY

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Alex Rodriguez faces the equivalent of a trial that will render a verdict for the rest of his career, but with one significant advantage: It will be up to the other team to show it can beat him.

Legal experts say Major League Baseball will have the burden of proof in its case against the New York Yankees third baseman, who on Monday was suspended for the rest of this season and all of 2014 but can continue to play while he appeals the penalty to an arbitrator.

Even though appellants typically have to prove their case because they are the ones starting the legal action, Michael Volpe, a partner in the New York firm of Venable LLP, said baseball's collective bargaining agreement and joint drug agreement stipulate that MLB has to show just cause in its application of discipline.

"These arbitrations are private," Volpe said, "but it appears on the face of these agreements that baseball will have the burden of proving a violation of both."

Commissioner Bud Selig said in a statement that Rodriguez violated both agreements through "his use and possession of numerous forms of prohibited performance-enhancing substances" and in obstructing MLB's investigation.

The joint drug agreement stipulates a case is to be heard within 10 days of appeal. Arbitrator Fredric Horowitz has 25 days to render a decision - uphold, strike down or reduce the suspension. However, Michael Weiner, executive director of the Major League Baseball Players Association, said there's no time line for the appeal to be completed, but it figures to go into the offseason.

"I would hope by the end of October the grievance is done," Weiner told reporters in a conference call. "We're not going to get it done before the season is over."

Legal analysts with experience in arbitration cases say they're very similar to court cases, with a few differences. For one, the rules of evidence are not strictly applied, so hearsay is admissible, although the arbitrator weighs its value.

The cases don't require convening a jury, so they're more expeditious than trials. They're held in conference rooms, not courtrooms, so the setting is not as formal.

"I always tell my clients that even though you're in an informal environment, the testimony has the same force and effect that it would have if you testified in a court of law," said Robert Lanza, former general counsel for the NBA players union.

As in many trials, the defense strategy figures to hinge on attacking the evidence and assailing the credibility of witnesses. Those two elements will be key for MLB because it doesn't have a positive drug test to prove Rodriguez's culpability.

Star witness Anthony Bosch, founder of the Biogenesis clinic at the heart of a doping scandal that led MLB to suspend 12 other players Monday, undoubtedly will be a main target of David Cornwell and the rest of Rodriguez's legal team.

"There will be cross-examination. That's where it's going to get interesting," said St. John's law professor Anthony Sabino. "If Mr. Bosch testifies on behalf of MLB, you can expect he will be subject to a rigorous cross-examination by Rodriguez's lawyers."

It's not clear whether Rodriguez will testify, which would be a risky move but perhaps his best chance at having the suspension overturned or shortened, the legal experts said.

By appealing, Rodriguez at least is buying himself time and the chance to continue playing. And he will force MLB to make its case.

"It's more difficult (for Rodriguez's chances) than being in front of a jury because there are other forces at issue," said Stuart Slotnick, a New York defense attorney. "But it's better to be in front of an arbitrator under the drug agreement than to be subject to the commissioner's sole word."